BRIEFING PAPER
Number 7650, 24 February 2017
Brexit: implications for
policing and criminal
justice cooperation
By Joanna Dawson
Contents:
1. Summary
2. The UK’s opt out from EU
policing and criminal justice
measures
3. Existing Justice and Home
Affairs measures
4. Cooperation from outside the
EU
5. Government statements
6. EU Home Affairs SubCommittee Inquiry
7. Other inquiries
www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary
2
Brexit: implications for policing and criminal justice cooperation
Contents
1.
Summary
3
2.
2.1
2.2
The UK’s opt out from EU policing and criminal justice measures
EU competence in home affairs and justice: background
The UK’s approach to JHA cooperation since 2009
4
4
5
3.
Existing policing and criminal justice measures
Information sharing
Agencies
Cooperation between Member State authorities and mutual recognition
Criminal offences
Procedure
8
8
9
11
12
13
4.
4.1
4.2
4.3
Cooperation from outside the EU
Current arrangements with third countries
Possible future arrangements
Specific measures
Agencies
Mutual recognition
Information sharing
14
14
16
17
17
21
25
5.
Government statements
27
6.
EU Home Affairs Sub-Committee Inquiry
31
7.
Other inquiries
33
Cover page image copyright Flagging support by Dave Kellam. Licensed under CC BY
2.0 / image cropped.
3
Commons Library Briefing, 24 February 2017
1. Summary
EU law on criminal justice and policing cooperation can be divided into
five areas:
•
Mutual recognition of criminal decisions and cooperation ;
•
Participation in EU agencies; and
•
Information sharing
•
The substantive criminal law (the definition of criminal offences);
•
Criminal procedure;
The UK currently has an arrangement whereby it can choose which laws
it wishes to adopt, and opt out of others.
In relation to the substantive criminal law and criminal procedure, the
measures that the UK has chosen to adopt essentially affect domestic
law. As such, they would not necessarily need to be altered as a result
of the UK’s withdrawal from the EU.
By contrast, the mutual recognition of decisions, information sharing
and participation in agencies involve cooperation between Member
States. Therefore, alternative arrangements would have to be put in
place of existing measures if the UK wished to maintain similar levels of
cooperation.
The Government has indicated that it wishes to maintain a close
relationship with the EU in this area, reflecting the mutual benefits of
the current arrangements. Experts from law enforcement, the legal
profession and academia have highlighted the importance of certain
existing measures, including the European Arrest Warrant; membership
of agencies such as Europol and Eurojust; and information exchange via
mechanisms such as the second generation Schengen Information
System (SIS II).
A number of factors are likely to affect the outcome of negotiations in
this area. The UK will in some cases be seeking unprecedented access to
measures for a non-EU, non-Schengen country. It remains to be seen
whether the UK’s pre-existing relationship with the EU, and the
contribution it currently makes in relation to cross border crime and
security, will be sufficient to secure this access.
The UK will also have to adhere to data protection standards that are
broadly equivalent to those in the EU on an ongoing basis, if it is to
retain access to information sharing measures.
Further, the Government has indicated that it does not intend to
continue to accept the jurisdiction of the Court of Justice of the EU
(CJEU). An alternative mechanism for resolving disputes as to the
interpretation and implementation of any agreements reached will
therefore need to form part of those agreements.
4
Brexit: implications for policing and criminal justice cooperation
2. The UK’s opt out from EU
policing and criminal justice
measures
2.1 EU competence in home affairs and
justice: background
Justice and Home Affairs (JHA) did not initially fall within the ambit of
the European Community. In 1990 a group of Member States agreed
under the Schengen Treaty to abolish their border controls. At the same
time a package of police cooperation measures were agreed to deal
with criminals who might misuse this new freedom.
This was followed by the Treaty of Maastricht in 1992, which made
provision for certain forms of criminal justice legislation, known as the
‘third pillar’. These arrangements were dealt with on an
intergovernmental basis and were subject to a different legal framework
in which the role of EU institutions was more restricted.
In 1999 the Schengen acquis (body of law) was incorporated into the
framework of the EU by the Treaty of Amsterdam. Although the acquis
does not apply to the UK and Ireland, special rules mean that both
countries can request that some or all of the rules do apply to them. The
UK currently participates in the policing and criminal justice aspects of
the Schengen acquis, but not the immigration aspects.
Prior to 2009, the Member States of the EU agreed on approximately
130 measures relating to police and criminal justice cooperation. These
included aspects of the substantive criminal law; mutual recognition in
criminal matters; harmonisation of criminal procedure; exchange of
information; and EU law enforcement agencies.
The Treaty of Lisbon incorporated these pre-2009 third pillar measures
into the main body of EU law, to which the enforcement powers of the
Commission and CJEU apply. From this point the UK had the ongoing
option of opting in to any new measures in this area, and of opting out
of any laws that were adopted before the Treaty.
Participation in these measures is principally governed by Protocols 19
and 21 of the Lisbon treaty:
•
JHA (Title V) opt-in Protocol 21: The UK, and separately Ireland,
may choose, within three months of a proposal being presented
to the Council, whether it wishes to participate in the adoption
and application of any such proposed measure. If the UK notifies
the President of the Council of its intention to participate within
that three month period, there is no possibility of opting out later.
If the measure is adopted, the UK is bound, the CJEU has
jurisdiction over the measure, and the Commission has the power
to enforce in respect of any failure to implement the measure. If
the UK does not opt in by the three month point, it is still entitled
to a seat at the negotiating table, but has no vote and, as a result,
has reduced negotiating weight with which to shape the
5
Commons Library Briefing, 24 February 2017
proposal. However, the UK may, at any stage after a measure has
been adopted, indicate its wish to participate, though the
Commission has to approve and the Commission and Council can
impose conditions.
•
Schengen ‘opt-out’ Protocol 19: Article 4 of Protocol 19 on the
Schengen acquis, provides that the UK (and Ireland respectively)
may request to take part in some or all provisions of the Schengen
acquis, with respect to police and judicial cooperation. The UK
does not participate in the border control elements. The UK is
deemed to be in any measures which build on those parts of the
Schengen acquis in which it already participates unless, within
three months of the publication of the proposal or initiative, it
notifies the Council that it does not wish to take part in the
measure. If the UK does not opt out within that three-month
period, it is automatically bound. If the UK opts out, the
Commission and Council can decide to eject the UK from all or
part of the rest of Schengen to the extent considered necessary if
such non-participation seriously affects the practical operability of
the system, but the Protocol states explicitly that it must seek to
retain the UK’s widest possible participation. 1
As a result of these rules, the UK has what has been described as a
“special status” in relation to EU cooperation on Justice and Home
Affairs matters, meaning that the UK’s involvement is limited to those
areas that successive UK Governments have deemed to be in the
national interest.
2.2 The UK’s approach to JHA cooperation
since 2009
Under Article 10(4) of Protocol 36 of the Lisbon Treaty, the UK was
entitled to withdraw from all existing measures in the field of police
cooperation and judicial cooperation in criminal matters. Article 10(5)
entitled the UK to notify the Council thereafter of its wish to participate
in specific measures.
In 2011, the Government announced a package of measures aimed at
strengthening Parliamentary scrutiny in the area of Justice and Home
Affairs. These included:
•
A written or oral statement to Parliament reporting all opt-in
decisions on new EU measures in the area of Justice and Home
Affairs;
•
In the case of particularly strong Parliamentary interest in an optin decision, a debate and vote in both Houses on the
Government’s recommended approach to the opt-in. 2
In July 2013, the UK notified the Council of its decision to opt out of the
pre-Lisbon Treaty measures. It immediately sought to opt back in to 35
of the same measures, accepting the enforcement powers of the
1
2
The JHA opt-in Protocol and Schengen opt-out Protocol, gov.uk
HC WS 20 Jan 2011, c51. The Government has also published a Code of Practice on
the Scrutiny of Opt-in and Schengen Opt-out Decisions in Justice and Home Affairs
Matters, available at Gov.uk
6
Brexit: implications for policing and criminal justice cooperation
Commission and CJEU jurisdiction with regard to them. Of
approximately 100 measures that the UK chose not to opt back in to,
the majority related to the substantive criminal law.
During a debate in Parliament on the decision to opt back in to certain
measures, then Home Secretary Theresa May outlined the Government’s
position:
We are seeking to rejoin the European supervision order, which
allows British subjects to be bailed back to the UK rather than
spending many months abroad awaiting trial. … I am sure that
the whole House also wants to see foreign national offenders sent
back to their own country. The prisoner transfer framework
decision provides for non-consent-based transfers throughout the
European Union, and the Government want to opt back into that
measure and send criminals back home. We also want our law
enforcement agencies to be able to establish joint investigation
teams with colleagues in other European countries. ... . It is also
quite clear that many other EU member states and their law
enforcement agencies rely on measures of this sort to provide the
necessary framework for practical cooperation in the fight against
crime. In most instances, bilateral agreements would simply not
work as effectively and our co-operation would suffer. ... . I want
to protect victims of crime, and I am determined to give our law
enforcement the tools they need to do that. The Government’s
policy is clear. We have exercised the United Kingdom’s opt-out
and are negotiating to rejoin a limited number of measures where
we believe that it is in the national interest to do so. 3
The Government published its Decision pursuant to Article 10(5) of
Protocol 36 to the Treaty on the Functioning of the European Union, 4
setting out the 35 measures that the UK was seeking to opt back in to
in July 2014, in advance of seeking Parliamentary approval.
The reasons for opting into these measures were well rehearsed at the
time, and the decision was subject to scrutiny by several parliamentary
Committees. 5 According to the then Home Secretary (Mrs Theresa May),
they were chosen on the grounds that they “make a positive difference
in fighting crime and preventing terrorism”. 6
In November 2014 the House of Commons voted by 421 to 29 to
approve draft Criminal Justice and Data Protection (Protocol No. 36)
Regulations 2014. These Regulations did not cover all 35 measures but
only 11 that required further transposition into national law.
Nonetheless the Government took the view that the vote should
represent an endorsement of all 35 measures.
Since this decision, the UK has chosen to opt in to further policing and
criminal justice measures, according to the same process. Significant
measures include the European Investigation Order and the Prüm
HC Deb 7 April 2014, cc 31-2
Cm 8897, HM Government, July 2014
5
The European Scrutiny, Home Affairs and Justice Committees published reports: see
3
4
The Government’s response to the Committee’s Reports on the 2014 block opt-out
decision, First Joint Report from the European Scrutiny, Home Affairs and Justice
6
Committees of Session 2013-14, HC 1177, 26 March 2014
Speech made by the then Home Secretary, The UK, the EU and our place in the world,
25 April 2016
7
Commons Library Briefing, 24 February 2017
measures. 7 Both are intended to support the cross-border investigation
of serious crimes. The UK also opted into the EU Passenger Name
Records (PNR) Directive and EU PNR agreements with Australia, the US
and Canada.
Its approach to deciding whether or not to opt in is described thus:
The Government has undertaken that all JHA proposals will be
assessed on a case-by-case basis. The Government will put the
national interest and the benefits to our citizens and businesses at
the heart of our decision-making and will consider each decision
under the Protocols with a view to maximising our country’s
security; protecting civil liberties; preserving the integrity of our
criminal justice and common law systems; and controlling
immigration. 8
Pre-Lisbon measures have also been revised, and new versions of earlier
instruments adopted.
The Government committed to publishing an annual report on decisions
taken. This takes the form of an updated document describing JHA optin and Schengen opt-out decisions taken between 1 December 2009
and the present. It lists the proposals, plus those the government is
currently considering and those on which a decision is expected in the
next few months: Decisions taken: JHA (Title V) opt-in and Schengen
opt-out decisions
According to the recent White Paper The United Kingdom’s exit from
and new partnership with the European Union, 9 cooperating in the fight
against crime and terrorism is one of the 12 principles which will guide
the Article 50 exit negotiations. The Government believes that it will be
in a strong negotiating position in this area:
Our pre-existing security relationship with the EU and its Member
States means that we are uniquely placed to develop and sustain
a mutually beneficial model of cooperation in this area from
outside the Union. We are starting from a position of strong
relations with EU Member States, where we have been at the
forefront of developing a number of EU tools which encourage
joint working across the continent to protect citizens and our way
of life.”
As we exit, we will therefore look to negotiate the best deal we
can we with the EU to cooperate in the fight against crime and
terrorism. We will seek a strong and close future relationship with
the EU, with a focus on operational and practical cross-border
cooperation.
For further detail of which, see below
The JHA opt-in Protocol and Schengen opt-out Protocol, gov.uk
9
Cm 9417, HM Government, February 2017, para 11.2
7
8
8
Brexit: implications for policing and criminal justice cooperation
3. Existing policing and criminal
justice measures
The following is a selection of the key measures in which the UK
currently participates.
Information sharing
Schengen Information System
The Second Generation Schengen Information System (SIS II) is a
database of real time alerts about individuals and objects (such as
vehicles) of interest to EU law enforcement agencies. 10 It includes
information on people wanted under a European Arrest Warrant,
suspected foreign fighters and missing people.
It contains around 70 million “alerts” on individuals or objects likely to
be of interest to border control, customs and law enforcement
authorities. Alerts created in any of the 29 countries operating SIS II are
stored in a central database and are immediately accessible to around
two million end-users.
SIS II alerts are made available to the police through the Police National
Computer and to Border Force officers at ports of entry.
The Government has highlighted its importance in tackling the terrorist
threat from foreign fighters returning from Syria and Iraq, tracking them
as they travel around Europe. 11
European Criminal Records Information System
The European Criminal Records Information System (ECRIS) provides a
system for the exchange of information on criminal convictions between
Member States. 12 Member States are obliged to inform each other
when they convict one of their nationals. 13 Member States are also
required to respond to requests for previous convictions for criminal
proceedings. This means that previous convictions in another Member
State can be taken into account for sentencing purposes and in
decisions about deportation. ECRIS can also be used to run criminal
record checks against individuals where required under national law, for
example to screen individuals seeking a firearms licence or applying for
a job involving vulnerable groups, such as children.
The Government has said that the system
has allowed the police to build a fuller picture of offending by UK
nationals and allowed the courts to be aware of previous
offending of EU nationals being prosecuted. The previous
convictions information can be used for bail, bad character and
10
11
12
13
Council Decision 2007/533/JHA
The UK’s cooperation with the EU on justice and home affairs, and on foreign policy
and security issues, HM Government, 9 May 2016
Decision 2009/316/JHA
Council Framework Decision 2009/315/JHA
9
Commons Library Briefing, 24 February 2017
sentencing, as well as by the prison and probation service when
dealing with the offender once sentenced. 14
Passenger Name Records
Passenger Name Records (PNR) is information collated by a carrier as
part of the travel booking process, such as contact details and travel
itinerary. The EU adopted legislation in April 2016 on the use of PNR
data for flights flying into the EU, for the prevention, detection,
investigation and prosecution of terrorist offences and serious crime. 15
Prüm
The so-called Prüm Decisions are EU Council Decisions 16 which embed
into EU law a pre-existing Convention between several EU member
states, providing mechanisms to exchange information between
member states on DNA, fingerprint and vehicle registration data for the
prevention and investigation of cross-border crime and terrorism.
Prüm will reduce the time taken to run an initial check against biometric
data (DNA profiles and fingerprints) from days or even weeks to around
15 minutes.
In 2015, Parliament approved the Government’s recommendation for
the UK to re-join the Prüm legal framework.
During the Commons debate on the measures, the then Home
Secretary Theresa May emphasised the support of senior law
enforcement officers and stated that attempts to exchange data in
other ways would require intergovernmental agreements and the
building of separate systems. 17
Fourth EU Money Laundering Directive
Directive 2015/849 calls for the intensification of information exchange
and collaboration between national financial intelligence units (FIUs).
FIUs are empowered to exchange any information that may be relevant
to money laundering or terrorist financing investigations.
Agencies
Europol
The main objective of Europol is to support and strengthen action by
Member States’ law enforcement authorities and facilitate cooperation
between these authorities in preventing organised crime, serious crime
and terrorism, where the crimes affect two or more Member States. It
provides support for UK law enforcement investigations and has
analytical capabilities, processing data and making links between crimes
in different countries.
Cm 8671, HM Government, para 209
Directive 2016/681
16
Council decisions 2008/615/JHA (Articles 3,4,9 and 12) and 2008/616/J
HA, Framework Decision
2009/905/JHA
17
HC Deb, 8 December 2016, c914-916
14
15
10 Brexit: implications for policing and criminal justice cooperation
Europol officers may take part in Joint Investigation Teams but have no
direct powers of arrest and no authority to use coercive measures. 18
Europol hosts a number of investigative hubs:
•
the European Counter Terrorism Centre, which provides
operational support to Member States investigating terrorist
offences;
•
the European Cybercrime Centre, which operates as a central hub
for information and analysis on cybercrime;
•
and the EU Internet Referral Unit which seeks to combat terrorist
propaganda and related violent extremist activities on the
internet.The Europol Information System (EIS) pools information
on criminals and terrorists from across the EU.
Seconded Liaison Officers from the 28 EU Member States and certain
third countries are based at its headquarters in The Hague.
Since 2009 Europol has been led by Rob Wainwright, the former head
of the international division of the UK’s Serious and Organised Crime
Agency (now the National Crime Agency). His term of office is due to
end in 2017 and the new director will be appointed under the rules of a
new Regulation.
Europol currently operates on the basis of a Council Decision adopted in
2009. A new Europol Regulation was adopted in May 2016, and the
Government subsequently made the decision to opt in to that
Regulation. It will come into force on 1 May 2017. 19 According to the
Minister for Policing and the Fire Service, Brandon Lewis:
Opting in will maintain operational continuity for UK law
enforcement ahead of the EU exiting the EU, ensuring our Liaison
Bureau at Europol is maintained, and that law enforcement
agencies can continue to access Europol systems and intelligence.
This decision is without prejudice to discussions on the UK’s future
relationship with Europol when outside the EU. 20
Eurojust
Eurojust 21 provides support and coordination to investigations and
prosecutions in cases of cross-border crime. This may involve advising on
the requirements of different legal systems, supporting the operation of
mutual legal assistance arrangements, facilitating the execution of arrest
warrants, bringing national authorities together to agree strategy in
specific cases, and providing legal, technical and financial support to
Joint Investigation Teams (JITs). Its mission is
… to support and strengthen coordination and cooperation
between national investigating and prosecuting authorities in
relation to serious crime affecting two or more Member States or
requiring a prosecution on common bases, on the basis of
Further information about Europol is available on the Europol website.
Explanatory Memorandum on the UK Government’s intention to opt in to Regulation
(EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on
the European Agency for Law Enforcement Cooperation (Europol) and replacing and
repealing Council Decisions 2009/371/ JHA, 2009/945/JHA and 2009/986/JHA,
Cabinet Office, November 2016
20
Letter dated 14 November 2016 to the Chair of the European Scrutiny Committee.
21
Council Decision 2002/187/JHA
18
19
11 Commons Library Briefing, 24 February 2017
operations conducted and information supplied by the Member
States’ authorities and by Europol. 22
Eurojust’s headquarters in The Hague is made up of representatives of
the Member States (prosecutors, judges or police officers of equivalent
competence) through whom the investigation and prosecution of
specific acts may be co-ordinated and arranged, and JITs may be set up.
Acting collectively as a college Eurojust may request a specific
investigation or prosecution, and seek to resolve conflicts as to which
Member States’ authorities should investigate or prosecute. These
functions include supporting the operation of mutual legal assistance
such as the European Arrest Warrant.
The 2015 Annual Report indicated that Eurojust was requested to assist
in 2,214 cases, and 120 Joint Investigation Teams were supported.
Cooperation between Member State authorities
and mutual recognition
European Arrest Warrant
The European Arrest Warrant (EAW) 23 facilitates extradition between
Member States, and is based on the principle of mutual recognition of
legal systems within the EU. Unlike extradition arrangements with
countries outside the EU, the EAW requires acceptance of a foreign
warrant by national judicial authorities without an inquiry into the facts
or circumstances giving rise to the warrant. It also limits the grounds on
which extradition may be refused, and provides for the extradition of
Member States’ own nationals (which is prohibited under many other
extradition agreements). It was intended to streamline the process of
extradition and relies on trust between Member States, premised on the
presumption of compliance with the European Convention on Human
Rights.
Prisoner Transfers
Council Framework Decision 2008/909/JHA established a system for
transferring convicted prisoners back to their country of nationality or
habitual residence, provided they have 6 months to serve. Deportation
may take place without the consent of the convicted person. The
scheme is based on the application of the principle of mutual
recognition for judgments imposing custodial sentences or measures
involving deprivation of liberty.
The Government chose to opt back in to this measure in 2014. It gave
two reasons for this decision:
•
It would help to reduce the Foreign National Offender population
and therefore result in savings in the form of prison places; and
•
It is important in the context of the European Arrest Warrant,
because it will enable UK nationals convicted elsewhere in the EU
to serve their sentence in the UK. 24
22
23
24
Article 86 TFEU
2002/584/JHA
Ministry of Justice measures in the JHA block opt-out, Justice Committee, HC 605,
2013
12 Brexit: implications for policing and criminal justice cooperation
Previous convictions
Council Framework Decision 2008/675/JHA requires courts to take
account of a defendant’s previous convictions in any other Member
State to the same extent national previous convictions are taken into
account.
European Supervision Order
The European Supervision Order (ESO) 25 established a system under
which a suspect or defendant subject to non-custodial pre-trial
supervision may on a voluntary basis be returned to their home member
state to be supervised there until the trial.
European Protection Order
The European Protection Order (EPO) 26 enables a judge to impose
‘protection measures’ in order to protect a person against a criminal act
which may endanger his or her life, physical or psychological integrity,
dignity, personal liberty or sexual integrity. Protection measures may be
prohibitions or restrictions imposed on a person causing the danger,
and can constitute an order not to enter certain places, not to contact
the subject, or to keep a specified distance from them.
The aim of the EPO is to ensure that crime victims who are granted
protection from their aggressor in one Member State are able to get
similar protection if they move to another.
European Investigation order
The European Investigation Order (EIO) 27 applies the principle of mutual
recognition in criminal matters to the field of evidence. This means that
there will be a presumption that that each state will recognise and
execute a request for evidence (although it will be possible to refuse on
specified grounds).
The EIO covers investigative measures including:
•
Interviewing witnesses;
•
Obtaining of existing information of evidence; and
•
Information on bank accounts
The EIO will replace most existing laws on the transfer of evidence
between Member States in criminal cases from May 2017. 28 It will
therefore become the sole legal instrument regulating the exchange of
evidence and mutual legal assistance between Member States.
Criminal offences
There are a number of EU measures aimed at establishing minimum
standards in relation to certain serious crimes with a cross-border
dimension. The UK has opted into a small number of these, including:
Council Framework Decision 2009/829/JHA
Directive 2011/99/EU
27
Directive 2014/41/EU
28
Current rules are contained in Council of Europe and EU mutual assistance
agreements and the Framework Decision on the European Evidence Warrant.
25
26
13 Commons Library Briefing, 24 February 2017
•
The People Trafficking Directive, 29 which requires Member States
to criminalise certain intentional acts associated with human
trafficking and further provides that investigating and prosecuting
these offences must not be dependent on reporting by the victim,
and that victims are provided with support and protection. The UK
initially exercised its opt out in respect of this Directive but later
applied to opt in.
•
Directive 2011/92/EU, aimed at combating the sexual abuse and
sexual exploitation of children and child pornography.
Procedure
A number of EU measures concern aspects of criminal procedure, aimed
at providing assurance that all Member States adhere to the same basic
standards in the context of mutual recognition measures. The UK has
opted in to some of the measures concerning the rights of defendants,
including:
•
Directive 2010/64/EU on the right to interpretation and translation
•
Directive 2012/13/EU on the right to information in criminal
proceedings
29
Directive 2011/36/EU
14 Brexit: implications for policing and criminal justice cooperation
4. Cooperation from outside the
EU
4.1 Current arrangements with third
countries
Norway
Norway has concluded an agreement with the EU on the
implementation of the Schengen acquis. Under Article 2(1) of the
Schengen Association Agreement with Iceland and Norway, Norway
must transpose and apply the provisions listed in Annex A to the
Agreement. 30
In areas not covered by the Schengen acquis, additional agreements
have been negotiated. These include agreements on participation in
Europol 31 and Eurojust. 32 The agreements with these Agencies
emphasise the importance of data security, requiring Norway to
guarantee minimum levels of protection. 33 Norway is also bound to
adhere to the principles and rules set out in the Council Decision setting
up Eurojust, meaning that it must adhere to European legal standards
for the protection of data security so that it can participate in exchanges
of data. 34
The agreements also provide for the presence of Norwegian liaison
officers at Europol and Eurojust. Europol also has a liaison officer
stationed with the competent Norwegian authorities. 35
Disputes relating to the agreements are settled by an arbitration
tribunal. 36
Norway has access to SIS II, by virtue of its participation in the Schengen
acquis.
Norway has concluded an agreement to participate in certain aspects of
the Prüm decisions. 37 This emphasises the need for the Schengen states
to cooperate closely in the fight against crime.
Norway does not have access to ECRIS (which is limited to EU Members
States), and instead must rely on the European Convention on Mutual
Assistance in Criminal Matters.
For further detail see Consequences of Brexit for the realm of justice and home affairs:
Scope for future EU cooperation with the UK, Research Section for European Affairs,
German Bundestag, 18 August 2016, section 5.2
31
Agreement between the Kingdom of Norway and the European Police Office
32
Agreement between the Kingdom of Norway and Eurojust
30
33
Consequences of Brexit for the realm of justice and home affairs: Scope for future EU
cooperation with the UK, section 5.2.3
2002/187/JHA
Agreement between the Kingdom of Norway and the European Police Office, Article
15
36
Article 18 of the Eurojust Agreement and Article 17 of the Europol Agreement.
37
Council Decision 2010/482/EU
34
35
15 Commons Library Briefing, 24 February 2017
Norway does not participate in the EAW, but has concluded a surrender
agreement with the EU. 38 The agreement makes provision for a uniform
arrest warrant and a simplified extradition procedure, including setting
time limits for the execution of arrest warrants. It contains certain
exemptions which do not apply to the EAW, including the possibility for
countries to refuse to extradite their own nationals. It has not yet
entered into force.
Switzerland
Switzerland has also concluded agreements relating to the Schengen
acquis 39 and with EU Agencies.
The Swiss agreement with Europol enables Switzerland to exchange
strategic and operational information. 40 It also contains provisions on
data protection and allows Switzerland to send liaison officers to
Europol.
Switzerland has an agreement with Eurojust covering cooperation in all
its areas of responsibility, including drug trafficking, illegal trade in
nuclear substances, human trafficking, terrorism, money laundering and
cybercrime. The main form of cooperation is exchange of information,
but there is also provision for the secondment of a liaison prosecutor
and financial and personnel contributions.
As with Norway, disputes are settled by an arbitration tribunal.
Non-EU countries
Rules were created for Europol and Eurojust which authorise them to
conclude data-exchange agreements with non-EU countries that do not
participate in the Schengen system. 41 External countries are required to
ensure an adequate level of data protection. In the case of Eurojust, this
may be established either by specific assessment or on the basis of the
country being subject to the Council of Europe Convention for the
Protection of Individuals with regard to Automatic Processing of
Personal Data. In the case of Europol, the country in question must have
the adequacy of its level of data security confirmed, and it must be
entered into a list adopted by the Council. 42
According to research conducted by the German Bundestag,
comparisons between the agreements concluded between Europol and
Norway, and those with non-EU countries, reveal differences:
If the Europol agreements with Norway and Albania are
compared, it emerges, for example, that there is divergent scope
for exchanges of personal data. If a request for information
contains no indication of its purpose and reason, Europol cannot
forward personal data to Albania. Under the agreement with
Council Decision 2006/697/EC Agreement between the European Union and the
Republic of Iceland and the Kingdom of Norway on the surrender procedure
between the Member States of the European Union and Iceland and Norway.
39
Swiss Schengen Association Agreement
40
Article 2 of the Agreement between the Swiss Confederation and the European Police
Office
41
Article 23 of Council Decision 2009/371/JHA and Article 26a of Council Decision
2002/187/JHA
42
Council Decision 2009/935/JHA
38
16 Brexit: implications for policing and criminal justice cooperation
Norway, by contrast, personal data may be exchanged without a
specific request. The provisions on information exchange in
Australia’s agreement with Europol, on the other hand, resemble
those in the Norwegian agreement more closely than those in the
Albanian agreement. While the Albania-Europol agreement, like
its Norwegian counterpart, provides for a liaison officer, the
Australia-Europol agreement merely envisages the secondment of
a liaison officer on the basis of a possible future agreement.
The EU has signed treaties on the exchange of passenger name records
with non-EU countries, such as the USA, Canada and Australia. It has
also agreed mutual legal assistance treaties with the USA and Japan.
4.2 Possible future arrangements
As can be seen from the examples above, cooperation between the EU
and non-Schengen countries involves separate negotiation in each area
of activity, in which the EU seeks to ensure that its legal principles are
not infringed.
The main avenues for future cooperation from outside the EU are as
follows:
•
To conclude agreements with the EU on judicial and police
cooperation, such as the agreements between EU and Norway
and Iceland on the EAW and Prüm;
•
To conclude cooperation agreements with agencies such as
Europol and Eurojust, such as those already agreed with third
countries; 43
•
To conclude bilateral agreements with EU Member States. 44
However, it appears unlikely that any of these options would provide an
equivalent level of co-operation as that currently enjoyed by the UK. Nor
would they enable complete independence from EU law.
Three factors are likely to limit the extent of future cooperation: 45
•
On an operational level, it is unlikely that UK requests (for
information or cooperation) from outside the EU would take the
same priority as they do from within the EU. The process may be
more akin to mutual legal assistance agreements with other
countries, rather than the instant or automated process involved
in EU measures.
•
On a political level, the UK will not have the same ability to
influence the development of the EU law in this area.
•
There may also be legal limitations, as a result of the UK no longer
being subject to the jurisdiction of the CJEU (for example, in
relation to data sharing).
As EU agengies, Eurojust and Europol are legally independent, and are able to
conclude agreements directly with third countriess
44
Although this option may be limited to areas in which the EU does not have
“exclusive competence” – ie areas not regulated by EU law.
45
For example: Mitsilegas, V, ‘The Uneasy Relationship between the UK and European
Criminal Law. From Opt-Outs to Brexit?’, Criminal Law Review, Issue 8, 2016, 519538
43
17 Commons Library Briefing, 24 February 2017
It has also been suggested that the UK may be in a different position in
negotiations to that of Norway and Switzerland, on account of the fact
that it is not a member of the Schengen system. For example, it was in
view of Norway’s Schengen membership that the EU Council put
forward the idea of concluding a surrender agreement. 46
One issue that will need to be resolved as part of any negotiation in this
area is how disputes are to be resolved. The Government has made it
clear that it does not propose to remain subject to the jurisdiction of the
CJEU in the future, and that any new arrangements would need to be
the subject of “bespoke adjudication arrangements”.
It is the norm for agreements between the EU and third countries in this
field to have some form of dispute resolution procedure. These vary
from attempting to resolve disputes through consultations, to an
agreement to submit to binding arbitration.
However if the aim of an agreement with the EU is to enable the UK to
participate in an EU body or regime, the relevant judgments of the CJEU
remain important as they bind the Member States and if not followed
by the third country lead to divergence. Thus the Extradition Treaty
between the EU and Iceland and Norway provides for the constant
review of CJEU case law.
4.3 Specific measures
Agencies
Europol
Europol currently has two types of agreement with non-EU countries:
strategic cooperation partners, including Russia, Turkey and Ukraine;
and operational cooperation partners, including the USA, Australia,
Canada, Colombia, Norway and Switzerland.
Strategic partners do not have access to personal data, whereas
operational partners do have indirect access to information and
intelligence, but are not involved in the management of the
organisation.
Differences between Europol provisions for Member States and third
country operational partners include:
46
•
Access to data – Third countries must ask Europol to conduct
searches in the Europol Information System on their behalf;
•
Access to Europol’s Secure Information Exchange Network
Application (SIENA) – third countries require an additional
bilateral agreement to access SIENA;
•
Decision-making – third countries do not sit on Europol’s
Management Board; and
Consequences of Brexit for the realm of justice and home affairs: Scope for future
EU cooperation with the UK, Research Section for European Affairs, German
Bundestag, 18 August 2016, section 6.1
18 Brexit: implications for policing and criminal justice cooperation
•
Liaison – third countries can only have a liaison bureau at the
Europol Headquarters with the agreement of the Management
Board. 47
Articles 23 and 26 of Europol Council Decision 2009/934/JHA define the
current procedure for Europol to negotiate and conclude agreements
with third countries. This requires the European Council first to
determine a list of the countries with which Europol can conclude
agreements, in consultation with the European Parliament. The Director
of Europol negotiates the agreement, provided that the Management
Board of Europol has decided that the country has adequate standards
of data protection. The Director then submits a draft agreement to the
Management Board, which must endorse it before it is sent to the
Council for approval. 48
Lord Kirkhope (former MEP and European Conservative spokesman on
Justice and Home Affairs) suggested in evidence to the House of Lords
European Union Committee that it has “taken five to seven years to
negotiate any Europol co-operation agreements“ and that “it takes
even longer when we are dealing with the exchange of data – the
actual specifics – where nine to 12 years in an average”. 49
It is not yet clear whether the UK will have to await its exit from the EU
before it can negotiate its relationship with Europol as a third country.
Shortly before the EU referendum, Rob Wainwright, Director of Europol,
said that the UK would become a “second tier member of our club” if it
left the EU. He warned that the UK’s future relationship with the
organisation may mirror Norway and Iceland, denying UK agencies
direct access to Europol data. 50
The National Crime Agency (NCA) has stated that the types of
arrangements that currently exist with third countries would not be
sufficient to meet the UK’s needs. 51 It emphasised in particular the
importance of access to the Europol Information System (EIS), which
pools information on suspected and convicted criminals and terrorists
from across the EU. Without access to the EIS, the NCA said:
all our inquiries would have to be made on a law enforcement to
law enforcement basis through liaison, rather than us having
direct access to the system. That would be a major issue. 52
The NCA suggested that instead of looking at existing precedents, the
UK should aim for a closer partnership.
HM Government, The UK’s cooperation with the EU on justice and home affairs, and
on foreign policy and security issues – background note
48
Council of the European Union, Discussion paper on Europol´s agreements with third
countries, 17 September 2013
49
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European Union
Committee, HL Paper 77, 16 December 2016, cited at para 58
50
The Guardian, Europol chief says Brexit would harm UK crime-fighting, 22 June 2016
51
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, HL Paper 77, 16 December 2016, para 55
52
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, HL Paper 77, 16 December 2016, para 56
47
19 Commons Library Briefing, 24 February 2017
The Government took the view that the UK’s pre-existing relationship
with Europol put it in a strong position to negotiate a bespoke
arrangement. 53
The Government believe that this position is bolstered by the UK’s
contribution to information sharing mechanisms such as the Secure
Information Exchange Network Application (SIENA) and EIS, which make
it a valuable partner. 54
However, others have pointed out that the UK’s refusal to accept the
jurisdiction of the CJEU, and the need to ensure equivalence in terms of
data protection standards, may be a constraint on future negotiations. 55
Professor Steve Peers of Essex University gave evidence to the House of
Lords EU Home Affairs Sub-committee. With respect to future
cooperation with Europol he said:
First, a non-member of the EU cannot be a member of Europol.
The people on the leave side are certain that it can, but it cannot.
However, it can be an affiliate member and participate in a lot of
what Europol does. The limits are that it cannot be on the
management board, even absent having the director, as we have
at the moment. We would have less access to databases and less
involvement in joint investigation teams. We could try to argue,
“Our participation has been historically so valuable; why do you
want to lose it? Please let us try and overcome some of those
difficulties”. I do not think you can get a compromise on the
management issue, because it seems logical that only member
states are involved in that, but we ought to be able to make a
strong case for access to information. I think you would have to
amend the legislation as well, so we would have to go back to the
drawing board a little on that.
One point to observe … is our data protection framework has to
be assessed if we want to participate in Europol. It is built in if you
are an EU member state, but there is a separate assessment of it if
you are a non-member applying to participate. We have to make
sure that our data protection law is roughly equivalent to
European Union standards. This is across the board but
particularly for policing in this context, otherwise there will be
problems in police co-operation in general and for Europol, and
indeed in the digital industry and economy in the non-policing
area as well. 56
The European Parliament has recently approved new governance rules
for Europol, which will result in a Joint Parliamentary Scrutiny Group
(JPSG) overseeing the work of the organisation. The JPSG’s membership
will include all 60 members of the European Parliament’s Civil Liberties
Committee, along with a member from each national parliament’s
53
54
55
56
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, HL Paper 77, 16 December 2016, para 61
Evidence of Bill Hughes, former Director General of the Serious Organised Crime
Agency, Brexit: Future UK-EU Security and Police Cooperation, House of Lords
European Union Committee, HL Paper 77, 16 December 2016, para 65
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, HL Paper 77, 16 December 2016, paras 62-63
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, Evidence session 1, 14 September 2016
20 Brexit: implications for policing and criminal justice cooperation
home affairs committee (or equivalent), or a member from each
chamber from bicameral parliaments.
The new rules come into force on 1 May 2017. The UK Government has
decided to opt into them in order to remain a full member of Europol.
However, it may not be possible to maintain representation on the JPSG
after leaving the EU.
Any new relationship with Europol once the UK leaves the EU will be
governed by the new Regulation. The Regulation authorises the transfer
of personal data to third countries in the following circumstances:
•
the Commission has adopted an “adequacy decision” establishing
that the third country ensures an adequate level of data
protection; or
•
the EU has concluded an international agreement with the third
country based on Article 218 TFEU — the likely legal base for any
future relations agreement between the EU and the UK —
“adducing adequate safeguards with respect to the protection of
privacy and fundamental rights and freedoms of individuals”.
Denmark currently participates fully in Europol but has an opt out of all
post-Lisbon EU justice and home affairs measures, meaning that it is
unable to participate in the new Europol Regulation. An agreement has
been reached to designate Denmark as a third country with respect to
Europol, thereby making it possible for Europol and Denmark to
conclude a cooperation agreement. A Joint Declaration issued in
December 2016 by the Presidents of the European Council (Donald
Tusk) and the European Commission (Jean-Claude Junker) and the
Danish Prime (Lars Lokke Rasmussen) states:
Such arrangements must be Denmark-specific, and not in any way
equal full membership of Europol, i.e. provide access to Europol's
data repositories, or for full participation in Europol's operational
work and database, or give decision-making rights in the
governing bodies of Europol. However, it should ensure a
sufficient level of operational cooperation including exchange of
relevant data, subject to adequate safeguards.
This arrangement would be conditioned on Denmark's continued
membership of the European Union and of the Schengen area, on
Denmark's obligation to fully implement in Danish law Directive
(EU) 2016/680/EU on data protection in police matters by 1 May
2017 and on Denmark's agreement to the application of the
jurisdiction of the Court of Justice of the EU and the competence
of the European Data Protection Supervisor. 57
Eurojust
Eurojust has cooperation agreements with the following third countries:
Ukraine, Montenegro, Moldova, Lichtenstein, Switzerland, FYR of
Macedonia, USA, Iceland and Norway. It also has Liaison Prosecutors
from the USA, Switzerland and Norway.
The current Eurojust Decision contains an extensive code for the
protection of data. It also specifically envisages Eurojust concluding
agreements with third countries and international organisations, subject
57
Press release 15 December 2016, Europa.eu [accessed 24 February 2017]
21 Commons Library Briefing, 24 February 2017
to requirements to protect personal data. 58 Failure to comply can lead
to the Joint Supervisory Board suspending further exchange of data with
the state concerned (subject to an exception for emergencies).
A proposed new Eurojust Regulation would also allow such agreements;
but data transfer would be subject to a data protection adequacy
Decision or specific agreement with the country concerned for the
protection of personal data, or, in specific one-off cases, stringent
conditions.
Maintaining some kind of relationship has been identified as a priority
by law enforcement experts. The Director of Public Prosecutions (DPP),
Alison Saunders, suggested in evidence to the House of Lords EU Home
Affairs Sub-Committee, that the ability to do things in real time and to
work multilaterally were the most useful features of Eurojust. 59
The DPP and the NCA also highlighted the importance of Joint
Investigation Teams (JITs), which are put together to focus on a
particular investigation or on a thematic basis. However, both felt that it
would be possible to participate in JITs from outside the EU. Professor
Peers noted that such arrangements already exist for Norway, Iceland
and Switzerland. 60
The DPP highlighted limitations in the arrangements that third countries
currently have with Eurojust, namely:
•
they are not part of the management board;
•
they do not have access to the case management system, which
enables cross checking of cases;
•
negotiations took a long time
As with Europol, it has been suggested that the impact of Brexit on
Eurojust would be particularly significant in light of the UK’s influence to
date:
Brexit would come as a shock in this area as the UK has been
instrumental in shaping the evolution and role of these bodies:
two out of four of the Presidents of Eurojust thus far have come
from the UK (Aled Williams and Eurojust’s inaugural President,
Mike Kennedy) … . 61
The Crown Office and Procurator Fiscal suggested that this lack of
influence may mean that the system evolves over time in a way that
ceases to fit with the UK’s adversarial systems. 62
Mutual recognition
It has been suggested that the UK could fall back on a number of
Council of Europe Conventions, which currently form the basis on
Article 26a.
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European Union
Committee, evidence session, 2 November 2016
60
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European Union
Committee, HL Paper 77, 16 December 2016, para 81
61
Mitsilegas, V, ‘The Uneasy Relationship between the UK and European Criminal Law.
From Opt-Outs to Brexit?’, Criminal Law Review, Issue 8, 2016, 519-538
62
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European Union
Committee, HL Paper 77, 16 December 2016, para 77
58
59
22 Brexit: implications for policing and criminal justice cooperation
which the UK and other Member States cooperate with certain non-EU
countries, 63 such as the Council of Europe Convention on Extradition
1957. However, these instruments are generally regarded as being less
effective than the EU instruments, and in other areas there is no existing
Convention to fall back on.
Helen Malcolm QC gave evidence on behalf of the Bar Council to the
House of Lord EU Home Affairs Sub-Committee. 64 Asked what she saw
as the main priorities in this area, she highlighted the fact that many
measures are interconnected, as a result of which, their retention
cannot be considered in isolation:
As a court user, at the end of an investigation process, I want to
see efficient and fair extradition maintained. I want to see the
ability to obtain evidence overseas and the ease with which
currently we can use it. That is the sort of thing that Eurojust
helps with; setting up a video link with a court in Germany so that
I can call evidence whether I am prosecuting, defending, or
indeed appearing in a judicial capacity. I want to be able to get
hold easily of previous convictions of people appearing in front of
me in other European states, as we can at the moment. I want to
maintain what is called euro-bail, the European supervision order.
Having been personally quite involved in that for so many years, I
am reluctant to see it go but I also think, more importantly, it
mitigates some of the problems with the European arrest warrant,
so I want to see that maintained, and, at the end of the process, I
want to see asset freezing and asset confiscation with the ease
that we can do it at the moment. 65
A similar point was also made by the DPP. Asked which tools and
capabilities should be retained post-Brexit, she said:
There is a package of measures that we think are really important.
They are not just the obvious ones such as the European arrest
warrant, which is absolutely vital and of which we make a great
deal of use. It starts right at the beginning; the package around
the European arrest warrant works because we also have SIS II—
the Schengen information system. That helps us because, when
we issue a European arrest warrant, we do not just issue it to a
particular country; it can go to all 27. Certainly we have examples
of cases when we did not really know exactly which European
country an individual was in. The SIS II enabled us to put out a
European arrest warrant, find somebody and bring them back
very quickly. That package is absolutely vital. 66
See for example, Spencer, J. R. ‘What would Brexit mean for British criminal
justice?’, Archbold Review, Issue 5, 22 June 2016
64
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European Union
Committee, evidence session, 14 September 2016
65
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, Evidence session 1, 14 September 2016
66
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, Evidence session 6, 2 November 2016
63
23 Commons Library Briefing, 24 February 2017
EAW
Given its record of support for the EAW, the Government may wish to
negotiate an extradition or surrender agreement that operates in a
similar way. However, during her last evidence session (as Home
Secretary) before the Home Affairs Committee in May, Theresa May
said:
If we are not in the European Union, we would almost certainly
not have access to the European arrest warrant. Norway, for
example, started negotiating with the European Union on access
to something similar to the European arrest warrant in 2001. An
agreement has been reached, but has not been implemented yet.
It includes, as I understand it, the caveat that could mean that
nationals of some countries could not be extradited. There are
some countries that will not extradite their nationals unless it is
under a European arrest warrant. I think that would have a real
impact on our ability to deal with criminals. 67
The UK may be in a more challenging position in relation to the EAW
than Norway and Iceland, which are members of the Schengen zone.
On signing the agreement, the Council of EU Member States noted that
“the Council agreed that it would be useful to apply the surrender
procedure model to the Schengen countries, given their privileged
partnership with the EU Member States”. 68
A Government briefing published prior to the referendum noted that
there is no guarantee that the UK could secure a similar agreement
whilst remaining outside of the Schengen zone. 69
Another option would be to revert back to the 1957 Council of Europe
Convention on Extradition, However, there would be a number of
limitations:
•
As with the Norway surrender treaty, a reservation to the existing
Council of Europe Convention on Extradition allows contracting
States to refuse to extradite their own nations.
•
The EAW involves a transaction between judicial authorities,
whereas applications under the Convention would be made
through diplomatic channels, with the Secretary of State being
responsible for making decisions at a number of points in the
process.
•
The EAW framework imposes time limits at each stage of the
process, unlike the Convention. The time frame for processing
extradition requests would therefore be likely to increase
significantly.
Home Affairs Committee, Oral evidence: The Work of the Home Secretary, 10 May
2016, Q326
68
European Commission, Proposal for a Council Decision on the conclusion of the
Agreement between the European Union and the Republic of Iceland and the
Kingdom of Norway on the surrender procedure between the Member States of the
European Union and Iceland and Norway, 17 December 2009
69
HM Government, The UK’s cooperation with the EU on justice and home affairs, and
on foreign policy and security issues (background note), May 2016
67
24 Brexit: implications for policing and criminal justice cooperation
Giving evidence to the House of Lord EU Home Affairs Sub-Committee,
Professor Steve Peers discussed the possibility of reverting back to the
pre-existing Convention:
We can go back to a Council of Europe system, of course. There is
a convention there with four protocols and there will be transition
literature about how we will do that, but be aware that it will
mean not only transitional challenges, which we are getting
already, but significantly fewer people extradited, taking
significantly longer and quite possibly more expensive in each
case. 70
Professor Peers also noted the importance of maintaining existing
arrangements as part of any transitional process:
[T]he Article 50 agreement and the separate deal on the actual
mechanics of leaving … has to deal with transitional issues and
pending requests for European arrest warrants and exchange of
data and evidence and so on. That issue is already arising. There
are already some cases in the Irish courts which are trying to say,
“Don’t execute arrest warrants coming from the UK because it is
going to Brexit and will not have the various protections that
come with the European arrest warrant in future”. I think it is the
beginning of what we will see increasingly throughout the
process, of people saying that there are transitional issues which
could frustrate what they need to do. Of course, those transitional
issues will have to be designed to link to our future relationship so
they have to be negotiated in parallel, as Article 50 says. 71
The Permanent Secretary to the Home Office, Mark Sedwill, has likewise
suggested that there could be complications for existing European
Arrest Warrants if the UK is forced to leave the EU before negotiating a
surrender agreement as a third country. 72
The NCA's written evidence to the Justice Committee posits that
“leaving the EAW would … pose a huge public protection risk to the
UK”. 73
Further:
Without the EAW, extraditions will become more complicated and
costly, take longer, and be more likely to be refused. There is the
added risk of existing MS putting UK requests to the ‘bottom of
the pile’ while they continue to use the EAW with other Member
States.
Others have suggested that the UK would cease to exert a positive
influence over the development of the law in this area. For example, the
current Framework Decision does not specifically permit the refusal to
execute a EAW on human rights grounds. However, a number of
Member States including the UK have chosen to expressly provide for
such grounds for refusal in national implementing law. 74 The CJEU
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, Evidence session 1, 14 September 2016
71
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, Evidence session 1, 14 September 2016
72
The Guardian, UK officials seek draft agreements with EU before triggering article 50,
22 July 2016
73
Justice Committee, Implications of Brexit for the justice system inquiry, National Crime
Agency, Written evidence
74
The Extradition Act 2003, in the UK
70
25 Commons Library Briefing, 24 February 2017
recently affirmed that a Warrant may be refused in certain
circumstances, including where there is a real risk of the surrendered
individual suffering a rights violation. 75 Thus:
A Brexit would have the consequences of the UK – which has
been pioneering in introducing human rights safeguards in the
European Arrest Warrant – leaving the system at the very time
when EU institutions appear to have begun to take these very
human rights considerations seriously. 76
Information sharing
To continue to participate in these systems after withdrawal from the
EU, the UK will in some cases be seeking unprecedented access for a
non-EU state outside of the Schengen zone. The EU has granted access
to SIS II and Prüm to some non-EU states, but only to members of the
Schengen zone. It has also signed treaties to enable third states access
to passenger name records, 77 but it has not yet agreed to share criminal
records (via ECRIS) with any non-EU countries. 78
SIS II
The NCA and the National Police Chiefs’ Council (NPCC) have both
emphasised the importance of ongoing access to SIS II, particularly in
light of its link to the EAW. 79 The NCA also suggested that the
intelligence agencies were concerned about the potential loss of SIS II,
because of its role in tracking people under surveillance. 80
However, the rules currently provide that data processed in SIS II (which
include biometric information) “shall not be transferred or made
available to third countries”. Changes proposed by the Commission
(expected to take effect after 2021) would go further, extending the
prohibition to any “related supplementary information” provided by a
Member State in connection with an SIS alert.
Prüm
The Minister for Policing and Fire Services, Brandon Lewis, has stated:
The Government does not envisage the initial timeline for
implementing Prüm being affected by the decision to leave the
EU, and is continuing with the implementation of Prüm. 81
He further suggested that an agreement along the lines of that agreed
with Iceland and Norway should be possible, notwithstanding the fact
that the UK is not a member of Schengen:
We have no reason to believe that such an international
agreement could not be reached with the UK after the UK leaves
Aranyosi (C-404/15) EU:C:2016:198
Mitsilegas, V, ‘The Uneasy Relationship between the UK and European Criminal Law.
From Opt-Outs to Brexit?’, Criminal Law Review, Issue 8, 2016, 519-538
77
Agreements with Australia and the US have been in force since 2012, an agreement
with Canada is not yet in force, pending a decision of the CJEU
78
Professor Steve Peers, EU Referendum Brief 5: How would Brexit impact the UK’s
involvement in EU policing and criminal law? 21 June 2016
79
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, HL Paper 77, 16 December 2016, paras 89-91
80
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, HL Paper 77, 16 December 2016, para 92
81
Letter to the Chair of the European Scrutiny Committee, 19 October 2017
75
76
26 Brexit: implications for policing and criminal justice cooperation
the EU. However at this stage it is premature to speculate on
whether the Government will seek to make such an agreement.
The agreement with Iceland and Norway 82 was concluded in July 2010
but is not yet in force. It extends all the substantive provisions of the
Prüm measures to Iceland and Norway. It further requires the parties to
the agreement to “keep under constant review” the development of
case law relating to the Prüm measures by the Court of Justice and the
competent courts in Iceland and Norway and to establish a mechanism
to ensure “regular mutual exchange” of relevant case law. The
agreement does not give the Court of Justice jurisdiction to make
rulings which are binding on Iceland and Norway. Iceland and Norway
must be notified of any proposed amendments to the Prüm measures
and “shall decide independently whether to accept the content of the
amendment and to implement it into their internal legal order”. If
Iceland and/or Norway do not accept the amendment, the agreement
will be suspended pending an examination of “all further possibilities”
to reinstate the agreement, “including the possibility to take notice of
equivalence of legislation”.
Early in 2016, Member States agreed to authorise the Commission to
open negotiations with Switzerland and Liechtenstein on their future
participation in Prüm.
EIS
As outlined above, the UK’s future access to Europol databases will be
dependent on the terms of any operational agreement made with the
agency, but third countries do not currently have access to the Europol
Information System. 83
82
83
2009/1023/JHA Agreement with Iceland and Norway
HM Government, The UK’s cooperation with the EU on justice and home affairs, and
on foreign policy and security issues, May 2016
27 Commons Library Briefing, 24 February 2017
5. Government statements
•
In a speech delivered before the EU referendum in April 2016, the
then Home Secretary Theresa May identified “3 big, future
challenges” for the UK — security, trade and the economy. On
security, she identified the European Arrest Warrant, the
Passenger Name Records (PNR) Directive and a number of EU
information-sharing instruments as examples of measures which
“make a positive difference in fighting crime and preventing
terrorism”, adding:
These measures — the Arrest Warrant and PNR — are worthwhile
because they are not about grandiose state-building and
integration but because they enable practical co-operation and
information sharing. 84
She said that the negotiation of the EU PNR Directive illustrated
why it was better for the UK to remain within the EU:
First, without the kind of institutional framework offered by the
European Union, a complex agreement like this could not have
been struck across the whole continent, because bilateral deals
between every single member state would have been impossible
to reach. And second, without British leadership and influence, a
Directive would never have been on the table, let alone agreed.
•
In evidence to the Home Affairs Committee on 5 September, the
Home Secretary Amber Rudd responded to a number of questions
on Brexit. In relation to the UK’s future involvement in Europol she
said:
I do believe that Europol has played an important role in keeping
us safe and we will be having discussions about how to continue
some form of involvement within the agencies of the EU that help
to keep us safe. It is too early to say what form that will take but I
can say that there is a strong desire from the Government and
from other European countries to ensure that we find a way of
working together so that they can have the benefit of our
expertise and we can have the benefit of shared intelligence.
…
I can’t be drawn quite yet on how that would work and what role
we would have within Europol but I can say that we want to have
an arrangement within other agencies like Europol—like, perhaps,
the European arrest warrant—where we can get the same
benefit. 85
In response to a question about the UK’s future involvement in
information sharing measures she said:
What you have drawn attention to is the fact that there are a
number of European intelligence systems that are very effective
for keeping us safe. The Schengen information system is certainly
one of them. As part of leaving the European Union, we will want
to find a way of giving the UK the benefits of being able to access
as many of those systems as possible. It is my understanding, from
my early conversations with other Interior Ministers, that they will
Home Secretary’s speech on the UK, EU and our place in the world, 25 April 2016,
Gov.uk [accessed 24 February]
85
The work of the Home Secretary, Oral evidence, Q35
84
28 Brexit: implications for policing and criminal justice cooperation
want our participation as well because, as you rightly say, we are,
for instance, one of the biggest contributors of information to
Europol. I think there is a common interest in making this work.
How that will actually work we don’t know yet, but the good
intention is there.
•
In a statement on 10 October, David Davis told the House that
one of the Government’s four aims for the Brexit negotiations is
to “keep our justice and security arrangements at least as strong
as they are.”86
•
Home Office Minister Brandon Lewis gave evidence to the House
of Lords EU Committee on 12 October.
Questioned on the future relationship with Eurojust, Mr Lewis
pointed to the fact that Norway, Switzerland and the USA have
co-operative relationships. He also suggested that a lot of work in
that area is done bilaterally.
On information sharing measures, Mr Lewis agreed that they help
to cut crime and improve public safety, but suggested that other
channels such as Interpol are also useful for information
exchange.
He argued that the UK was recognised as a major contributor to
all cooperative measures and that this would help in reaching
future arrangements.
•
On 19 October Mr Lewis wrote to the European Scrutiny
Committee indicating that the Government intends to continue its
preparations for implementing Prüm. 87 In anticipation of the
Government seeking to continue such arrangements after the UK
has left the EU, the Committee asked the Minister to provide
details of the main features of the model of cooperation set out in
the bilateral agreement on Prüm between the EU and Iceland and
Norway, and for further information:
[W]e would also like to hear your views on the provisions
concerning the uniform application and interpretation of the Prüm
measures and on dispute settlement. These provisions require the
parties to the agreement to “keep under constant review” the
development of case law relating to the Prüm measures by the
Court of Justice and the competent courts in Iceland and Norway
and to establish a mechanism to ensure “regular mutual
exchange” of relevant case law. The agreement does not give the
Court of Justice jurisdiction to make rulings which are binding on
Iceland and Norway. In light of your analysis, do you consider that
the model of cooperation set out in the agreement would be
suitable for the UK once it has left the EU? Given the
Government’s desire to keep justice and security arrangements
“at least as strong as they are”, would there be any operational or
other detriment to the UK if it were to participate in Prüm on the
basis set out in that agreement? 88
The Minister replied on 22 November 2016, stating:
HC Deb 10 October 2016, c55
Letter from Brandon Lewis to the Chair (37801), Ministerial Correspondence, House
of Commons European Scrutiny Committee
88
Ibid, 26 October 2016
86
87
29 Commons Library Briefing, 24 February 2017
The Home Office is looking at all areas of law enforcement and
security cooperation to assess what capabilities EU measures
deliver and considering the options for what that future
relationship on law enforcement and security might look like. The
Government has made clear that the UK will not be replicating
any other nation’s model and any future relationship will be
agreed in the context of the wider exit negotiations. It would be
wrong to pre-empt the outcome of those negotiations and the
operational impact these may have on specific areas of law
enforcement cooperation. However, cooperation in this area
remains a top priority – whilst we remain a member of the EU and
when we leave. 89
•
In her Lancaster House Speech on 17 January 2017, the Prime
Minister highlighted the importance of cooperation in this area:
With the threats to our common security becoming more serious,
our response cannot be to cooperate with one another less, but
to work together more. I therefore want our future relationship
with the European Union to include practical arrangements on
matters of law enforcement and the sharing of intelligence
material with our allies. 90
The Prime Minister envisaged that once an agreement has been
reached on the UK’s future partnership with the EU, there would
need to be “a phased process of implementation” which might
cover (amongst other things) “the way in which we cooperate on
criminal justice matters”.
•
In a House of Commons debate on Leaving the EU and Security,
Law Enforcement and Criminal Justice cooperation in January
2017, Mr Lewis, said:
We are considering the full range of possible options. We are
looking at existing arrangements for third country co-operation
with the EU, which can inform discussions, but it is important to
be clear that we are not looking to replicate any other nation’s
model. We are in a unique starting point with a strong history of
working closely with the member states as partners and allies. As I
mentioned, we will make a key contribution to security and justice
in Europe and globally, and will seek an agreement with the EU
that recognises the unique position we hold. 91
…
We are very clear that effective co-operation with EU member
states on security and policing in order to combat terrorism will
continue to be a top UK priority. Looking ahead, our EU-level
relationships will, of course, have to change, but our shared goal
of assuring and enhancing the security of our citizens will not. It is
important that we can find a way forward that works for the UK
and the EU jointly, for mutual benefit. We will approach the
negotiations from the perspective of what is best for the safety of
all our citizens, and what is worst for those who seek to cause
serious harm to innocent people and democratic values.
During negotiations, we will look to maintain the excellent cooperation that currently exists with our European partners. We
Letter to the Chair of the European Scrutiny Committee, 22 November 2016
The government's negotiating objectives for exiting the EU: PM speech, 17 January
2017, Gov.uk [accessed 24 February]
91
HC Deb 18 Jan 2017, c 959
89
90
30 Brexit: implications for policing and criminal justice cooperation
fully recognise that the nature of our future relationship can be
decided only in negotiations with member states and EU
institutions. We are confident, however, that all citizens will be
safer if we continue to work together and co-operate. We
recognise the challenges involved in negotiating a new
relationship, but we are committed to finding innovative solutions
that enable us to continue to work together for the collective
security of Europe and all the citizens of the United Kingdom. 92
•
The Secretary of State for Exiting the European Union, David
Davis, has suggested that the UK will negotiate from a position of
strength:
One of the things the Prime Minister has made plain is that we are
not the supplicant, either in this negotiation or in what follows.
Britain is the intelligence superpower in Europe; we are critical to
the defence of Europe from terrorist threat, and we are critical to
the military support of Europe and to dealing with migration, with
our Navy at work. Those things will continue; they are very often
on a bilateral basis anyway, but they will be done on a treaty basis
that is equal to both sides. 93
•
In February 2017 the Government published a White Paper on the
United Kingdom’s exit from and new partnership with the
European Union. This set out 12 principles to “guide the
Government in fulfilling the democratic will of the people”.
Principle 11 was “cooperating in the fight against crime and
terrorism”. The paper set out key aspects of the existing
arrangements, noting that the UK is one of the biggest
contributors to Europol systems and participates in all of its
current operational projects, as well as being a prolific user of
information exchange measures. It concluded that the
Government will:
… look to negotiate the best deal we can with the EU to
cooperate in the fight against crime and terrorism. We will seek a
strong and close future relationship with the EU, with a focus on
operational and practical cross-border cooperation. We will seek a
relationship that is capable of responding to the changing threats
we face together. Public safety in the UK and the rest of Europe
will be at the heart of this aspect of our negotiation.
92
93
C 963
HC Deb. 17 January 2017, col. 801
31 Commons Library Briefing, 24 February 2017
6. EU Home Affairs SubCommittee Inquiry
In December 2016, the House of Lords EU Home Affairs Sub-Committee
published a report of its inquiry into Future UK-EU Security and Policing
Co-operation.
The report concluded that maintaining strong cooperation with the EU
should be one of the Government’s top four overarching objectives in
negotiations. It also noted that
Only two years ago, many of the EU measures the UK is now due
to leave were deemed vital by the then Home Secretary in order
to “stop foreign criminals from coming to Britain, deal with
European fighters coming back from Syria, stop British criminals
evading justice abroad, prevent foreign criminals evading justice
by hiding here, and get foreign criminals out of our prisons”. 94
Law enforcement witnesses were consistent in identifying certain
measures as the priority for retention or renegotiation, namely:
•
Europol;
•
Eurojust;
•
SIS II;
•
EAW;
•
ECRIS;
•
The Prüm Decisions; and
•
PNR
In some instances, the report concluded that existing agreements with
non-EU countries provided precedents for credible substitutes. However
in other areas, there was either no precedent for access for non-EU or
Schengen countries, or the precedents that do exist would not meet the
UK’s operational needs.
The Committee did accept the Government’s view that the UK’s preexisting relationship with the EU, and its data expertise, may mean that
further models of cooperation will be available, beyond the existing
precedents.
Nonetheless, it suggested that it was inevitable that there would be
some practical limits on future cooperation due to the lack of oversight
of the CJEU, as a result of which the people of the UK and the rest of
the EU may be less safe.
It also noted the impact of the loss of UK influence on future
developments in this area, namely, a risk to the UK’s ability to protect its
security interests. Consequently, the Committee observed that
One of the challenges for the future, therefore, is whether, and if
so how, the UK can retain that sort of influence among its
94
Brexit: Future UK-EU Security and Police Cooperation, House of Lords European
Union Committee, HL Paper 77, 16 December 2016, page 2
32 Brexit: implications for policing and criminal justice cooperation
European neighbours and allies when it is no longer a full member
of the EU structures in which the strategic direction of travel is
set. 95
The Committee took the view that future adjudication arrangements
may pose a particular hurdle in negotiations, as a result of which, the
Government may encounter a tension between two of its negotiating
objectives: bringing back control of laws to Westminster and
maintaining security cooperation. The safety of the people of the UK
should be the overriding consideration in attempting to resolve that
tension, the Committee suggested. 96
95
96
Para 28
Para 39
33 Commons Library Briefing, 24 February 2017
7. Other inquiries
A number of other Committees are currently conducting inquiries in this
area, including:
•
Home Affairs Committee, EU policing and security issues inquiry;
•
Justice Committee, Implications of Brexit for the justice system
inquiry
•
Existing the European Union Committee, UK’s negotiating
objectives for withdrawal from the EU inquiry
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